But the noble man makes noble plans, and by noble deeds he stands.
Voukelatos, the owner of 39 Glebe Point Road, and Casimatis, his lawyer, urged Amir Bodenstein to sign a Lease Contract that did not reflect the previous Core Lease Agreement and that had conditions that were relevant just to a shop in a shopping centre.
Voukelatos encouraged Bodenstein to sign the lease contract as soon as possible and recommended that he get his own legal advice on that matter. He complained that Bodenstein was raising too many objections to the proposed clauses in the lease.
He insisted that a lease of many pages was normal and that previous tenants had never had a problem with clauses in their leases that were similar to the ones in the lease Bodenstein was being asked to sign.
Voukelatos informed Bodenstein that if he were to add a deep fryer to the kitchen, premium increases for the fire insurance would have to be paid due to the increased risk.
He added that if Bodenstein wanted a simpler, shorter contract, then his lawyer, Casimatis, would have to be paid around $1,000 by Bodenstein to draft that.
Voukelatos went through a series of objections by Bodenstein to clauses in the proposed contract and in the main rejected those objections.
Voukelatos’ draft contract was for a cafe restaurant with no mention of residential use, despite Bodenstein having informed him from the very beginning of his plans for his family to live on the first floor of 39 Glebe Point Road.
Bodenstein claimed Voukelatos was not sticking to the original verbal agreement and suggested that he was doing so for tax reasons. Bodenstein proposed the first floor be used as a boutique motel but the owner rejected that idea.
Voukelatos and Bodenstein argued about when exactly the owner would pay the $5,000 for the replacement and instalation of the new roof.
The owner agreed that Bodenstein would have a free hand in his renovations of 39 Glebe Point Road, with the exception of any structural changes for which both owner consent and Council approvals would have to be obtained.
The insurance claim, which had been previously discussed, would pay for installing a few doors, replacing broken windows, repairing the stairs, installing new railing, carpeting three rooms, cleaning carpets, repairing walls, painting the interior and installing two new shop front windows.
It had been agreed that the GIO payout money from the claim would be paid to Bodenstein. Now, however, Voukelatos said he could not guarantee the claim would be approved by the GIO because the damage occurred when the property was unoccupied.
Finally both parties accepted a mutually acceptable GIO offer of $4,100. The owner delayed payment of that sum to Bodenstein, firstly claiming he had run out of cheques and then saying he would not pay until Bodenstein had signed the lease contract.
Voukelatos kept raising new issues relating to structural engineering and Council rules.
In February 2002 Voukelatos stated he was happy with Bodenstein’s “dream plans” for 39 Glebe Point Road and added that, as long as those plans were approved by Council, that he would be happy for Bodenstein to proceed.
Bodenstein had agreed to pay half of the legal fees for the lease and in addition the registration fees, stamp duty and disbursements. Casimatis asked Bodenstein for a cheque to cover those commitments.
In May 2002 Voukelatos asked Bodenstein again for the signed lease and reminded him that he was waiting for the D.A./B.A. paperwork and for the rent. He said his payment of the GIO insurance money had been again delayed when he had mistakenly sent the cheque to the wrong address in Glebe.
Contents
1. Shopping centre
2. Private agreement
3. Roof on trust
4. Free hand in renovations
5. Insurance money
6. Structural issues
7. Legal fees
8. A Registered Deed
1. Shopping centre
Mr Voukelatos and Mr Casimatis created and urged me to sign a Lease Contract that did not reflect the Core Lease Agreement and that had conditions that were relevant to a shop in a shopping centre.
Landlord’s Disclosure Statement BC 1-4, 41-4
“Date on which shop will be available for occupation by the Tenant: 5/1/02”
“Retail Shopping Centre Details”
“Name of Shopping Centre”
“Number of Retail Shops in Retail Shopping Centre”
“Parking Facilities at Retail Shopping Centre”
“Trading Hours”
23.01.02 Mr Casimatis to AB – BE 1, 47
“Please advise us as soon as possible if you have any comments on the documents and if not, when we can expect to receive the signed documents together with the cheques requested in our letter.”
31.01.02 Mr Casimatis to AB – BF 1, 48
“Please advise us as a matter of urgency if you have any comments on the documents and if not when we can expect to receive the signed documents together with the cheques requested in our letter.”
05.02.02 Mr Voukelatos to AB – BH 1, 51
“Re the Lease I have I believe made reasonable concessions to get the Lease in place but I still don’t know the precise reason for your concern. I believe the most important thing is that you and me want to make this agreement work. If we don’t have this intention from the beginning, then a 50 page Lease of conditions won’t help.”
“I’m sure we will quickly resolve them and as I stated on the phone I would like to see the Lease signed by Friday.”
11.02.02 Mr Voukelatos to AB – BK 1, 55
“ c) Theo tells me you raised some new issues which you did not raise before and are as follows:
1) You apparently say now that I must pay Council rates, water rates and land tax – you will remember that you were to pay water rates and I would pay Council rates and land tax – see our notes of agreement that Evos typed in your office.
2) He says you ask that it be stated in the Lease that I must replace the roof with insulation within 6 months of 5th January 2002. Again this is the opposite of what we agreed – see our notes of agreement which says not before 6 months from 5th January 2002.”
18.02.02 Mr Casimatis to AB – BM 2, 60
“We point out that our client is no longer negotiable on the terms. Again we strongly recommend that you seek legal advice on these matters and on the Lease generally. Further negotiation will increase our fees in the matter. We look forward to hearing from you.”
19.02.02 Mr Voukelatos to AB – BN 1-2, 61-2
“The standard Lease has been modified to reflect the recent proposal we made on 3/1/02 and subsequently modified as a result of your letters dated 5/2/02 and 14/2/02 by response from Theo Casimatis dated 8/2/02 and 18/2/02.
You keep stating that the Lease is intended for use in shopping centers – however, if you call the Law Society of NSW you will see that it is intended to be used for all commercial premises.”
“9&10) “Water/sewerage/trade waste is the tenants responsibility. Council rates & land tax is the landlord responsibility. The Lease as drafted was wrong –see Theo’s letter dated 15/2/02 corrects this & makes Council rates & land tax my responsibility & water, sewerage rates, and trade waste your responsibility.”
“However, whether you decide to get a lawyer or not we still must sign the Lease & as I stated to you and Evos today in the past 10 years when I have been leasing the property to several tenants the only time we had a problem was with the last tenant and the issue there was a non payment of rent. We never had a problem with any of the other clauses covered by the Lease, which was also similar to the one you are being asked to sign. Provided both tenant and landlord are reasonable, then most things are agreed quickly without resorting to the courts and I am sure that we will have a very good relationship but I cannot accept suggestions that the Lease is too long and complex and should be replaced by a shorter one. If you ask a lawyer you will see it is normal for such a Lease to be signed.”
“Also Theo cannot spend weeks working on a Lease without getting paid – if you check with another lawyer you will again see that $1000 is very reasonable. Up to what he has done to date his fees will be as quoted; however, any additional work will increase his fees and as previously stated to you I’m not going to pay for any extra cost since I’m happy to sign the Lease after the necessary adjustments advised to you in Theo’s two letters are made.”
24.02.02 Mr Voukelatos to AB – BO 4, 66
“Finally I just wanted to mention one point with respect to my fire insurance policy. The policy at present is for the use of the premises as café. I’m advised by Peter Campbell that, if you were to add a deep fryer to the kitchen, then he will need to inspect the set up & if my premium increases because of extra risk (due to the deep fryer), then I believe you should pay for any increase. If you agree with this, then there is no need to put in the Lease.”
“Now you can see why I am pessimistic that you will ever get around to signing the Lease – old questions keep resurfacing and another nine new ones came up today (on top of the previous 44 you raised before).”
“Evos said today we are ‘making progress’ my view is we are going 1 step forward & 2 back!”
“Therefore please re-examine these issues before I contact Theo since as stated in my letter to you 19/2/02 there’s no way I’m going to pay additional legal fees because you refuse to get legal advisor. If Theo charges more than what we agreed i.e. $1000 + expenses you will pay the extra!”
03.03.02 Mr Voukelatos to AB – BQ 1-7, 68-74
“Another week or so has gone by since I last wrote to you and we’ve had many telephone discussions in that time & whilst I think some progress has been made I still believe we are a long way on some others.”
Its caused me so much concern that to be honest with you had I known this was going to progress in the way that it has I never would have bothered – as I told you all I am looking for is a reliable tenant who pays his rent and looks after the building. And yet possibly because of your background you seem to have insecurity problems that’s made this Lease a minefield for you and created fears beyond the ordinary concerns of most tenants.
And yet I’ve tried often against the advise of my lawyer to accommodate your concerns for two reasons 1) I still believe you to be an honest and respectable person 2) Living so far from Aust. its not easy for me to come out each time a problem arises and deal face to face on issues with you or other tenants.
However I think now we have arrived to both of us to decide whether we proceed or terminate. This is not meant as a threat to you but simply I’m stating a reality, you’ve been negotiating the Lease for some 2 months and still there are issues there that we cannot back down on any further, issues which we need to have in the Lease.
I don’t want to spend another week or two going over the same things with you – its very tiring for both of us 7 lets face it we both have other things to get on with life. Apart from that I don’t and I’m sure you don’t want to have a prolonged disputation which may turn to be ugly and I’m sure that you as I do would prefer to be friends as tenant and landlord.”
“There are possibly several item I haven’t raised here which we have discussed before e.g. Any additional premium charged by GIO as a result of a deep fryer (for chips) being installed in the kitchen will be paid by you- this was agreed & there may be others but they are to do …with fine tuning e.g. whether clause 21.3 is necessary.”
“When I look at these I honestly can’t understand why signing of the Lease has dragged on for so long! I had also faxed this letter to Theo as well as my previous letter to you dated 24/2/02 so that he can be informed as to what we’ve over the past 8-9 days. Regards Zois P.S. After your phone call I agree lets sign this week-make a real effort.”
14.03.02 My Lawyer to Mr Casimatis BR 2-3, 76-7
“(6) However, on or about 17 January 2002, your clients unliterary departed from the Core Lease Agreement by requiring our clients to execute a draft Lease agreement, which draft marks a significant departure from the Core Lease agreement.
(7) Our clients have attempted to resolve the matter in a commercial and co-operative a manner but it appears to our clients that your clients are unwilling to honor their obligations in accordance with the Core Lease Agreement and their representation.
(11) Given the relationship between the parties our clients believe that your clients should be given a further opportunity to resolve the matter. Our clients are willing to discuss directly with your clients a Lease agreement based on the Core Lease Agreement. Our clients expect that satisfactory form of agreement will be executed within 7 days. If this outcome is not achieved our clients intend to pursue the matter further to obtain, among other things, the remedies to which our clients are entitled including enforcement of the Core Lease Agreement in addition to compensation for the loss and damage suffered by them by virtue of their reliance upon your clients’ representation and the Core Lease Agreement.”
20.03.02 Mr Voukelatos to AB – BS 1, 78
“Today I spoke with Theo who is in the process of amending the Lease but he is required by ethical standards to send to your lawyer in Melbourne. If you want it sent to you, then your lawyer must send a latter to Theo giving him those instructions. He also sends me the letter from your lawyer dated 14/3/02.
In it there several matters that are grossly incorrect & insult me in a direct way. Firstly the written document was only meant to be an outline of our verbal agreement in your office and was never intended to be a ‘Lease’. Secondly points 6 & 7 are entirely lies and when we have an opportunity I will explain in detail what I mean. It’s a shame you didn’t spend the legal fees on more important matters…To be frank with you I’m disappointed with your actions in this letter.”
27.03.02 Mr Casimatis to AB’s Lawyer – BT 1-3, 79-81
“We note that you are to pay one half of the above fees and accordingly kindly let us have a cheque in favor of our firm for the sum of $731.50.”
“(2) There was no agreement reached. The written document you refer to was proposal to be further considered by the parties. All keys terms and conditions of the Lease were not included in such written proposal, for example:
(3) The payment of the monies was a sign of good faith with the expectation of a Lease form being negotiated and entered into and the keys were provided only for access to enable preparation of plans etc. but not for the purposes of occupation until the Lease was entered into.”
(11) As mentioned above the “Core Lease Agreement” has been departed from by not only our clients (which did not agree to same) but also by your clients.”
30.03.02 Mr Voukelatos to Casimatis and AB – BU 1-3, 82-3
“Dear Theo. Re: Further amendments to be carried out to Lease.
“(1) Please delete clause 26 entirely. This deletion will require amendment of the definition of Landlords Property “and including etc “ will need to be deleted. I believe remainder of 12(5) needs to remain.”
“Amir- please call me as discussed after you’ve looked at the above so I can send it to Theo for final amendment. Regards Zois PS. Give my regards to Evos.”
03.04.02 Mr Voukelatos to AB – BV 1, 84
“Today I received an e-mail from Theo dealing with the various issues on which you seek further amendment to the amended Lease you received last week. The issues that were raised in my last fax to you (dated 30/3/02) were partly acceptable to him but some for reasons outlined below were not acceptable and he strongly advised us against accepting such amendments).”
“(1) Clause 26 – its deletion is too risky for us since the Retail Leases Act may impose an obligation on us to make the premises habitable.”
2. Private agreement
The permitted usages of the property are for a café and take away outlet for the ground floor and a residence for the first floor. In the Draft Lease Mr Voukelatos put permitted usage just as Café Restaurant and not residential.
My plan, which was known to Mr Voukelatos, was for at least the first two to three years to operate as a Restaurant from the ground floor and to live with my family in residence on the first floor and I asked for this clause to be adjusted accordingly.
At one stage I suggested, to resolve Mr Voukelato’s concern, putting a boutique motel the first floor because it seemed to be the only way to get his permission to occupy the first floor with my family (commercial usage).
Mr Voukelatos agreed only to residential usage for the first floor in a private agreement that was never made. He refused to stick by our original agreement because of tax reasons and also because there would need to be an extra separate residential lease.
16.01.02 Landlord Disclosure Statement BC 1, 41
“Address of Shop/ Shop No. Shop 39, 39 Glebe Point Road, Glebe.”
“Permitted Use of shop: Café and takeaway food outlet.”
14.02.02, AB to Mr Voukelatos BL 1, 57
“2) Page 6 item 11 Add – “restaurant and Boutique motel.”
18.02.02 Mr Casimatis to AB – BM 1, 59
“2) Restaurant is agreed, boutique motel is not agreed. If the Landlord’s fire insurance premium increases as a result of the permitted use being altered to restaurant, the Tenant will be liable to any additional premium relating to the use as a restaurant.”
24.02.02 Mr Voukelatos to AB – BO 1, 63
“1) I’m quite happy to sign a private agreement that says you can use the upstairs as a private residence for your family – although there’s nothing in the lease that says you can’t. However we need to ask Theo whether the private agreement is another lease.”
XX.03.2002, Mr Voukelatos to AB – BQ 6, 73
“8) With respect to doing a separate agreement for the upstairs enabling use by you and your family as residence – I haven’t yet asked Theo whether it’s possible but see my previous letter to you dated 24th February 2002.”
3. Roof on trust
In December 2001 Mr Voukelatos received a quote of $5.000.00 for the replacement and insulation of a new roof. We agreed that he would pay for this work but not before six-months into the lease. Although it was in the Core Lease Agreement, Mr Voukelatos did not want to include this in the lease insisting on making it a matter of trust.
03.01.02 Core Lease Agreement BA 1, 39
“(5) Roof and insulation: Landlord is to replace roof and to insulate, not before 6 months into the lease.”
11.02.02 Mr Voukelatos to AB – BK 1, 55
“(c), (2) He says you ask that it be stated in the Lease that I must replace the roof with insulation within 6 months of 5th January 2002. Again this is the opposite of what we agreed – see our notes of agreement which says not before 6 months from 5th January 2002.”
19.02.02 Mr Voukelatos to AB – BN 1, 61
“(5) We have agreed to keep this out of the lease and on trust and I have given you my word that the work will be done. Don’t forget I volunteered to undertake such expenses before we made the proposal and got a quote when I was in Sydney.”
4. Free hand in renovations
Mr Voukelatos resided in Greece and because of my building experience and Morden Paint’s design capabilities, we had agreed that I would be responsible and would have a free hand for the overall process of renovation and design, without the need to have Owner consent.
Mr Voukelatos raised concerns in the negotiation of the Core Lease Agreement about authorization of structural changes and we agreed, and it was understood, that if I wanted to carry structural changes in the future, he would have to provide his consent as such changes would also serve his needs and required Council approval.
The only structural changes that were discussed in the negotiations of the Core Lease Agreement pertained to the possibility of carrying out Mr Voukelato’s ideas of adding a balcony to the first floor residence, making an opening in the sidewall and the rebuilding of a new toilet in the back yard.
None of my renovation ideas required Council approval and I was not thinking of making any structural alterations to the building for at least the first two-to-three years.
00.01.02 Core Lease Agreement BA 1, 39
“(11) Tenants must obtain the appropriate permits to any structural change to the property and the landlord must sign the approval for obtaining the permits.”
11.02.02 Mr Voukelatos to AB – BK 2, 56
“(3) Apparently you want to be able to make structural alterations without my consent. This is something I cannot agree with. Amir – I am still the owner of the building and would like to be informed of what is happening with it. For instance you might want to bulldoze the building and make it into a parking station – do you think I should allow you to do it without consent? Or you may want to turn it into a brothel – do you think I should allow it? The above are extreme examples but show what could happen if my consent is not necessary.”
“What we agree is that I would allow you to carry structural alterations to the building provided they were approved by Council e.g. in this case of the opening of the wall in the park. I wouldn’t proceed to give my consent unless a structural engineer looked at it first and approved its construction in a particular way so as to make it safe and stable.”
18.02.02 Mr Casimatis to AB – BM 1, 59
“(10) (b) at the end of clause 12.2 (c) the following may be inserted: ‘and if approved by the Landlord, the Landlord must sign (as owner) whatever authority is required to enable the Tenant to obtain all necessary approvals from the relevant authorities to such works subject to the Tenant satisfying the Landlord that the application for such approvals is for the works approved by the Landlord’.”
19.02.02 Mr Voukelatos to AB – BN 1-2, 61-2
“(11) ‘Tenants must obtain the appropriate permits to any structural change to the property and the landlord must sign the approval for obtaining the permit. This proposal has caused the most difficulty in the drafting but the variation made by Theo in his latest letter to you – see point 10 – covers it adequately. Here I have to add what I said to you today on the phone, which is that this amendment is particularly important to me in the situation where you sell the business. There must be a check to ensure that I’m advised of the type of structural alteration to be made before the tenant goes to the expense of drawing up plans and getting Council approval.”
“You remember I told you I would be very flexible on this with you since your proposed changes will be of ongoing benefit to the building, however I cannot allow a clause which permits you or any future tenant to carry out any work without first getting my approval.”
24.02.02 Mr Voukelatos to AB – BO 1, 63
“(5) Re further amendments sought clause 12.2 – as mentioned in my letter to you dated 19/2/02 we already agreed to amend this partly see Theo’s letter dated 15/2/02 however as Owner I still need to have some ‘check’ of proposed structural changes (Otherwise there is no point in having clause 12 at all).”
03.03.02 Mr Voukelatos to AB – BQ 3, 70
“(b) are amended as shown in that letter. I’ve explained many times why it’s important for any proposed structural alterations to be first approved by the Landlord, in addition Theo advised me of one more that the mortgagor (I.M.B) who must approve this Lease also – will not accept the amendment you seek namely that the Landlord must sign whatever the tenant wants to do in the way of structural changes. The protection that you have is that I cannot be reasonable in withholding my approval e.g. the color of the building you prefer to paint – that would be unreasonable for me to intervene – however, ask your own lawyer what “unreasonable” means.”
31.03.02 Mr Voukelatos to Mr Casimatis BU 1, 82
“(2)clause 12 (1) and 12(2) need to be further amended since they don’t fully reflect what Amir and I earlier agreed, i.e. that only structural works that require or need Council approval for their performance need to be first approved by the Landlord who may not unreasonably withhold such approval. This means that works which don’t require Council approval don’t require the Landlord’s approval before they are carried out.”
03.04.02 Mr Voukelatos to AB – BV 1, 84
“Clause 12.5 is needed to cover structural work which may be required as a result of your negligence (e.g. Fire)”.
“(3) clause 12.1 he suggests that in the line 1 after “not carry out’ we insert the word ‘structural’ and in the second line after ‘approval’ we insert “which may not be unreasonably withheld’. No further amendments would be required in clauses 12.1 and 12.2 because all structural works need Council approval.”
5. Insurance money
The insurance claim was for: installing a few doors, replacing broken windows, repairing the stairs and installing new railing, carpeting three rooms, cleaning carpets, repairing walls and painting the interior and installing two new shop front windows.
In our negotiation of the Core Lease Agreement we had agreed that if the outstanding insurance claim for prior damage to the premises was approved, the money from the claim would be passed from GIO to me and that this would be Mr Voukelatos’ contribution towards the renovations.
In December 2001 Mr Voukelatos said words to the effect of: “I cannot guarantee that the claim will be approved since the damage had happened when the premises were not occupied and I was told that it might be against my insurance policy”.
In early January 2002 Mr Voukelatos gave me the contact details of Les Parks of O’Brien Glass and Mr Peter Kemble of GIO allowing me to continue the process of the claim on his behalf.
I contacted Mr Peter Kemble of GIO and he provided me with the phone number of Mrs Dawn Burgess of Roberston and Co, Chartered Loss Adjuster. I met Mrs Burgess and she advised me that there was a problem with the claim re the carpet for some reason.
Shortly after, Morden Paint sent her a mutually acceptable quotation and at the end Mr Voukelatos accepted the GIO offer of $4,130.00 without consulting me and which did not include the cost of replacing the carpets and the windows of the front shop.
The transfer of the $4,130.00 from the insurance claim was delayed when Mr Voukelatos claimed to have run out of cheques and then by stating he’d sent a cheque to the wrong address. In the end Mr Voukelatos accepted the insurance refund as rent payment.
03.01.02, ‘Core Lease Agreement’ BA 1, 39
“(5) Insurance money to be passed on to us.”
16.01.02, ‘Landlord Disclosure Statement’ BC 1, 41
“In accordance with clause 26 of the Lease the Tenant is to attend to all works (structural or otherwise) as set out in Schedule One of the Lease and in the Landlord’s claim to GIO.”
“The tenant cannot require the Landlord to undertake the works in Schedule One of the Lease nor in GIO claim.”
“The only money that the Landlord will be liable to pay to the Tenant in respect of the Schedule One works or the works set out in the claim to GIO will be that money (if any) which GIO pays to the Landlord in respect of the claim made by the Landlord.”
21.01.02 AB to Mr Burgess BBH 1-2, 100-1
“1. Please find attached quotation no. 1075.
2. I would submit ASAP O’Brien’s quote to damaged front windows.
3. As for the carpet claim, I would be thankful if you would put an effort for recovery.
4. Please let me know when, and to whom, shall I submit the landlord’s approval for The works to be carried by MPSA P/L.”
“Quotation – No 1075
Total sum: $5,351.50”
30.01.02 Mr Sprakes to AB BBI 1-2, 102-3
“O’Brien Glass
Total quote- $1,200.00”
05.02.02, AB to Mr Casimatis BG 2, 50
“(23) Page 34 – Pr 26.1 – 26.8 – (delete)”
“(24) Page 3 – schedule 1 – 11 – (delete)”
05.02.02 Mr Voukelatos to AB – BH 1, 51
“(1) Re GIO claim: as stated I cannot sign the papers to pass the funds to you at this stage as you have not signed the Lease. I think I am being very reasonable in this because let’s face it until the Lease is signed you or I could change our mind about the whole deal. I was actually surprised you asked me to sign the money over to you at this stage – it’s like you don’t trust me – remember I was the one who volunteered to give the money to you in our negotiations when I was in Sydney.”
“However, as I said to you yesterday, you cannot even carry out the building work at this stage because the building permit has to be firstly approved by Leichhardt Council – so why the rush to take the money when you cannot spend it?”
08.02.02 Mr Casimatis to AB – BJ 2, 54
“(23) Not agreed. Some of the clauses that you refer to there are for your benefit i.e., the payment of moneys under the insurance claim. Other clauses make it abundantly clear that the premises need work and you cannot object to the state of repair of the premises and that certain work will be undertaken by you”.
“(24) Not agreed. See our comments to paragraph 23 above”.
14.02.02 AB to Mr Casimatis BL 1-2, 57-8
“(5) Page 9 – Landlord property”
“ And including all items …to clause 26” – (delete)”
“(19) Page 34 – Pr 26.1 – 26.8 – (delete)”
19.02.02 Mr Voukelatos to AB – BN 1, 61
“(6) ‘Insurance money (from GIO) to be passed on to the tenant in relation to damage to property incurred prior to the signing of this Lease. Tenant must comply to the insurance co. requirement.”
“First this was included in the Lease but then it was agreed between us to exclude it and keep it on trust. I undertake to pay all funds given to me by GIO in respect of claim no. SB2017519 to you when you are in the process of doing the building work.”
24.02.02 Mr Voukelatos to AB – BO 2, 64
“(13) You ask that clause 26 be deleted in its entirely. We looked at this before when you asked & Theo’s reply on 15/2/02 partly deleted the sub-clauses that are not relevant.”
03.03.02 Mr Voukelatos to AB – BQ 5, 72
“(4) Clause 26- Theo previously advised you that clause 26.4, 26.5, 26.7 and 26.8 should be left in the Lease. This should not be a problem for you especially since these clauses have a time funds from GIO have been used by you to carry out the repairs set out.”
30.03.02 Mr Voukelatos to Casimatis and AB – BU 1-3, p. 82-3
“Dear Theo. Re: Further amendments to be carried out to Lease.”
“(1) Please delete clause 26 entirely. This deletion will require amendment of the definition of Landlords Property “and including etc “will need to be deleted. I believe remainder of 12(5) needs to remain.”.
“Amir – please call me as discussed after you’ve looked at the above so I can send it to Theo for final amendment. Regards Zois P.S. Give my regards to Evos.”
03.04.02 Mr Voukelatos to AB – BV 1,84
“The issues that were raised in my last fax to you (dated 30/3/02) were partly acceptable to him but some for reasons outlined below were not acceptable and he strongly advised us against accepting such amendments)”.
“(1) Clause 26 – its deletion is too risky for us since the Retail Leases Act may impose an obligation on us to make the premises habitable”.
6. Structural issues
Mr Voukelatos raised issues about the D.A., structural engineering and Council rules that were irrelevant at the time. It was understood from the beginning that I wanted to open the Restaurant as soon as possible and bring my family to live on the first floor. In order to achieve this neither structural changes nor owner consent nor Council approval were required.
Mr Voukelatos did discuss with me his ideas for making an opening in the sidewall, which would merit a further 2.5 years extension of the lease and adding a back yard deck, which would see him make a $25,000.00 contribution. It was understood that these changes would require Owners’ consent and Council approval.
Contrary to the above understanding, Mr Voukelatos in his faxes was pushing issues in regard to the D.A., structural engineering and Council rules. I did not pay special attention to the above as we were arguing about many important issues and those remarks were part of long faxes.
05.02.02 Mr Voukelatos to AB – BH 1, 51
“ (1) Re GIO claim: as stated I cannot sign the papers to pass the funds to you at this stage as you have not signed the Lease. I think I am being very reasonable in this because let’s face it until the Lease is signed you or I could change our mind about the whole deal. I was actually surprised you asked me to sign the money over to you at this stage – it’s like you don’t trust me – remember I was the one who volunteered to give the money to you in our negotiations when I was in Sydney.”
“However, as I said to you yesterday, you cannot even carry out the building work at this stage because the building permit has to be firstly approved by Leichhardt Council – so why the rush to take the money when you cannot spend it?”
“I’m sure we will quickly resolve them and as I stated on the phone I would like to see the Lease signed by Friday. Then you can immediately submit your plans and building permit to Leichhardt Council after I’ve signed them.”
Around 23.02.02, Evos to Mr Voukelatos FB 1-3, 225-7
Mr Voukelatos knew that the sketches were reflecting future dreams and that I don’t have any intention in carrying them out in the near future, if at all. Mr Voukelatos was concerned in regard to structural engineer OK and Council rules and regulations.
25.02.02 Mr Voukelatos to AB – BP 1, 67
“I’ve been looking at the plans you send me by fax and they look fantastic! Unfortunately the writing is too small for me to read and understand them precisely but as far as I’m concerned if Council are happy that they comply with their rules and regulations you’ve no doubt had a structural engineer/builder advise you and give OK, then I’m happy with it that you proceed as shown. If Evos came up with this concept, then I’ll start calling him Michelangelo! Great stuff, Evos. Both me and Vess hope you have a tremendous success and wish you good luck!”
03.03.02 Mr Voukelatos to AB – BQ 3, 70
“The second protection you have is that essentially I’ve already agreed with the draft you sent me last week & did not ask for any alterations & I said to you I would be very happy to sign an approval for Council to these plans.”
7. Legal fees
I paid extra legal fees on top of what we had agreed was my part in the preparation of the lease. Before Mr Voukelatos left Australia I paid him $300 plus GST as my contribution to the preparation of the lease.
When it came down to the final stages of preparing the lease, I received a quote for half of the legal fees but my $300 contribution was ignored. I did not argue about this matter as I wanted to put my efforts into more important issues.
05.01.02 Mr Voukelatos’ Invoice BB 1, 40
“Reimbursement legal fees $300”
16.01.02 Mr Casimatis to AB – BD 1-2, 45-6
“We note that you have agreed with our client to pay half our legal fees, along with all of the registration fees, stamp duty and disbursements. Accordingly, would you please let us have a cheque for $743.00 in respect of our costs?”
“In addition to the above cheque for our costs, please provide us with a bank cheque in favor of the Office of State Revenue (for stamp duty on lease) for $932.00.”
19.02.02 Mr Voukelatos to AB – BN 2, 62
“(2) Also Theo cannot spend weeks working on a lease without getting paid – if you check with another lawyer you will again see that $1000 is very reasonable. Up to what he has done to date his fees will be as quoted however any additional work will increase his fees and as previously stated to you I’m not going to pay for any extra cost since I’m happy to sign the lease after the necessary adjustments advised to you in Theo’s two letters are made.”
24.02.02 Mr Voukelatos to AB – BO 4, 66
“There’s no way I’m going to pay any additional legal fees because you refuse to get your own legal advisor. If Theo charges more than what we agreed, i.e. $1000 + expenses you will pay the extra!”
27.03.02 Mr Casimatis to AB – BT 1, 79
“Total $1,463.00. We note that you are to pay half of the above fees and accordingly kindly let us have a cheque in favor of our firm for the sum of $731.50.”
8. A Registered Deed
07.05.02 Mr Voukelatos to AB – BZ 1, 90
“I hope you get the Lease back from your wife this week so you can take it to Theo and then it’s considered signed for the purpose of us signing the Council DA. You may want to send that to us now to save your time? With the rent due on 5/5, let me know how much you paid so I can prepare and send you the tax invoice.”
“…(Liver and other offal) and it’s a family get-together, so the island was full. Hopefully you may come here with your family for …”
03.05.02 Mr Burgess to Mr Voukelatos BBK, 105
“Our report has been submitted to GIO General Insurance and they have accepted liability to the amount of $4,130.00 net of the $1,000.00 excess as per quotation from A & J Joinery.”
27.05.02 Mr & Mrs Voukelatos to Mr Burgess BBL, 106
“Dated at Lefkas this 27th day of May 2002”
06.06.02 Mr Voukelatos to AB – BBB 1, 93
“Dear Amir, I haven’t heard from you since my fax to you dated 1/6/02; however, I just wanted to ask you two things;
a) With regard to the Development Application and Building Application which must be submitted with Leichhardt Council just wondering how they are going because you haven’t sent to me for signature yet and Evos mentioned that you were opening in a month… and yet you’ve done quite a lot of work. So let me know what stage you’re at please.
b) Is the rent money in the account yet since I need to do transfer for my mortgage by tomorrow if possible and need your confirmation.”
26.06.02 GIO to Mr Voukelatos BBJ 1, 104
“Gross $5130.00
Excess Deducted $1000.00
Net $4130.00”
09.07.02 Mr Voukelatos to AB – BBD 1, 95
“I received a cheque a few days ago from GIO for $4,130 (they deducted $1,000 excess). I’ve just run out of cheque book and NAB will send me one hopefully this week and I will send you a cheque.”
“How’s the café going? I wouldn’t mind seeing the final plans. When are you sending me the DA application and the Building Application for signature? Hope your family is well and you also. Regards Zois, P.S Say hello to Evos for me.”
31.07.02 Mr Voukelatos to AB – BBE 1, 96
“You will see I got $4,130 insurance refund. I’ve deducted from that the August rental of $3,575 (see invoice no. 06) & I’m sending you my cheque for the balance of $555. This is per your request & meets the Lease clause that any refund from GIO is passed on to the tenants. This is per your request & meets the Lease clause that any refund from GIO is passed on to the tenants”.
13.09.01 Mr Casimatis to AB and his wife – BBG 1, 99
“We refer to the above matter and now enclosed the original registered Lease no. 8898392.
Please acknowledge receipt by signing and returning the attached copy of this letter.”
Registered Lease No. 8898392P AA 1-38, 1-38
“Commencing Date: 5/1/02
Terminating Date: 4/1/07
With an option to renew for a period of 5 years + 5 years.”
25.09.02 Mr Voukelatos to AB – BBF 1, 97
“Hello, are you back from Israel? Hope all went well & you had a great time with your family & that they are well. I just wanted to let you know that my second letter to you with my cheque for $555 (being part GIO refund after deduction of the August rental) came back to me in Greece – I made a silly mistake & wrote 13 Mitchell Street as your address on the envelope.” “P.S. How’s the building work …”